Mathu Velu Udayar vs The State of Tamil Nadu

A.D. Koshal, J.—The petitioner held the office of President of the Porasakurichi Panchayat from some time in the year 1965 to the end of

July, 1970. The accounts for that period were scrutinised by the auditors appointed u/s 141 of the Tamil Nadu Panchayats Act. Numerous

irregularities were found to have been committed by him and the auditors reported to the Panchayat that he should be burdened with a sum of Rs.

10,185. The matter was referred to the Revenue Divisional Officer, Vridhachalam, who found a sum of Rs.4,718 to be due from the petitioner for

the loss caused to the Panchayat by him during his tenure as President of the Panchayat. He issued a certificate under Rule 5(1) of the Rules

framed by the Government of Tamil Nadu under Clause (xvi-a) of Sub-Section (2) of Section 178 of the said Act in relation to the power of

auditors in the matter of surcharge (hereinafter referred to as the Rules). A copy of his certificate accompanied by that of the reasons in support of

the surcharge was furnished to the petitioner on the 2nd of November, 1971. It required him to pay the amount last mentioned within fourteen days

from the date of its receipt. It is that certificate by which the petitioner feels aggrieved and which he desires to have quashed by a writ of certiorari.

The only contention raised in support of the petition is that the impugned certificate was issued as a result of proceedings with which he was not

associated and of which he had no notice and that, therefore, the same is void and of no effect as against him. This contention is wholly without

force because of the provisions of Rules 5 to 7 of the Rules which are reproduced below:

(1) Any auditor empowered by the Government, may disallow every item contrary to law and surcharge the same on the person making or

authorising the making of the illegal payments and may charge against any person responsible therefore the amount of any deficiency, loss or

unprofitable outlay incurred by negligence or misconduct of that person or of any sum, which ought to have been, but is not brought to account by

that person and shall, in every such case, certify the amount due from such person.

Explanation:--It shall not be open to any person whose negligence or misconduct has caused or contributed to any such deficiency or loss, to

contend that notwithstanding his negligence or misconduct the deficiency or loss would not have occurred but for the negligence or misconduct of

some other person.

(2) The auditor shall state in writing the reasons for his decision in respect of every disallowance, surcharge or charges, and furnish by registered

post, a copy thereof to the person against whom it is made.

(3) If the person to whom a copy of the auditors'' decision is so furnished refuses to receive it, he shall nevertheless be deemed to have been duly

furnished with a copy of such decision within the meaning of Sub-rule (2). The period of fourteen days fixed in Rules 6 and 7 shall be calculated

from the date of such refusal.

6.(1) Any person aggrieved by disallowance, surcharge or charge made, may, within fourteen days after he has received or been served with the-

decision of the auditor, either.

(a) Apply to the Principal, Civil Court of Original jurisdiction to set aside such disallowance, surcharge or charge and the Court, after taking such

evidence as is necessary, may confirm, modify or remit such disallowance, surcharge or charge with such orders-as to costs as it may think proper

in the circumstances; or

(b) in lieu of such application, appeal to the Government. An order passed on such appeal by the Government shall be final.

(2) from any decision of the Court under Clause (a) of Sub-rule (1), an appeal shall lie to the High Court. ''Where an application is made to the

Court under Clause (a), the auditor shall be the sole respondent thereto and the applicant shall not be entitled to make either the Government or

any other person a party to the proceedings.

Every sum certified to be due from any person by the auditor under these rules shall be said by such person into the treasury or the bank in

which the funds of the Panchayat Union Council or Panchayat are lodged within fourteen days after the intimation to him of the decision of the

auditor unless within that time; such person has appealed to the Court or to Government against the decision; and such sum, if not paid, or such

sum as the Court or the Government, shall declare to be due, shall be recoverable on an application made by the Collector of the district in the

case of Panchayat Union Councils, and Divisional Panchayat Officer in the case of Panchayats to the Court in the same way as an amount decreed

by the Court.

These provisions clearly make out that the certificate issued by the auditor empowered by the Government under Sub-rule (1) of Rule 5 is the

first step in the proceedings and that it is only if a person against whom such a certificate is issued wants to challenge the same that further

proceedings are to be held and he has to be associated therewith.. These proceedings are envisaged in Rule 6 and have to be initiated by the

person concerned within fourteen days of the receipt of the copy of the reasons. for the decision on which the certificate is based. Such a copy

was made available to the petitioner on the 2nd of November, 1971, but instead of availing of either of the remedies vouchsafed to him by Rule 6,

rushed to this Court. On his behalf, no reason is put forward as to why he did not choose to avail of those remedies and as to how neither of them

would have been an effective remedy. In this view of the matter, I do not see why the petitioner should be granted any relief whatsoever in exercise

of the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. Accordingly, the writ petition fails and is dismissed with

costs. Counsel''s fee Rs. 100.